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Wednesday, 11 December 2013
Page: 2325


Mr GILES (Scullin) (10:29): I rise to speak in opposition to the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013. As I do so I am conscious that, once again, questions of asylum feature on the front pages of major newspapers. Of the many matters raised by the previous speaker, the member for Mitchell, I will confine myself to responding to just one. I want to assure him, and members opposite, that I and members on this side of the chamber are aware of the insidious and evil nature of the people-smuggling trade and of the ways in which people smugglers attempt to game the system. I am, however, entirely unsure of what that adds to this debate.

I am also reminded of the complexities of these questions, of the vast range of factors that shape this global problem, and of the limitations that this places on legislative amendments such as those presently before the House to answer these questions in the manner so often expressed so confidently by members opposite.

What a misleadingly titled piece of legislation this is. Whatever this bill does, it is not accurately or helpfully described by its title. Is this about regaining control over Australia's protection obligations?

A government member: Yes.

Mr GILES: Really? In fact, this bill essentially removes criteria for the grant of protection visas by reason of complementary protection grounds. An important matter, though, is that this is, in the words of the shadow minister, a 'niche element', applying to 57 grants.

Not for the first time in this parliament, and not for the first time from this minister, there is something chilling and Orwellian about the use of language here. As with, under the Howard government, legislation described by titles such as 'more jobs, better pay'—

A government member: It worked.

Mr GILES: It did not work. It most certainly did not work. Rhetorical statements purporting to describe bills do not do the work of the legislation for it.

This continues the disappointing tenor of what has been passing for a debate about immigration in this place. This is, of course, a difficult debate, which raises difficult questions for all of us in this place. Yesterday was Human Rights Day, and I remind members opposite that we are in its shadow considering the rights of some of the world's most vulnerable people—those facing real risk of very serious harm or death.

Indeed, the United Nations General Assembly proclaimed 10 December as Human Rights Day in 1950, to bring to the attention 'of the peoples of the world' the Universal Declaration of Human Rights as the common standard of achievement for all peoples and all nations. Australia made a very significant contribution to this.

In keeping with this, article 33(1) of the Convention Relating to the Status of Refugees states:

No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

There is a need to prevent people from being caught in limbo whereby they may not meet one of the five criteria set out in article 1(2) of the convention, but, per section 36(2) of the Migration Act, still be at real risk of one or more of the following—arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, degrading treatment or punishment. Indeed—members opposite should be aware of this—this is acknowledged by the minister.

A government member: We just said that. Weren't you listening?

Mr GILES: I was listening. I'm not sure that you were.

Prior to March 2012, such a determination was made entirely at the minister's discretion, in accordance with then section 417 of the Migration Act. In June 2000, the Senate Standing Committee on Legal and Constitutional Affairs outlined these powers in chapter 8 of its report, 'Refugee and Humanitarian Determination Processes' as follows:

The Minister may substitute a more favourable decision if the Minister thinks it is in the public interest to do so;

The power may only be exercised by the Minister personally;

If the Minister substitutes a more favourable decision he/she must inform Parliament of the reasons and the new decision reached;

Certain information is not to be disclosed to Parliament in the statement made. In particular, the person's identity and the identity of associated persons must not be disclosed;

Statements must be made to Parliament at the times specified in the legislation; and

The Minister is under no duty to consider whether to exercise this power.

In short, the power was arbitrary. It was also noncompellable and nonreviewable.

In government, Labor changed the law so that applicants could lodge protection claims under the Refugees Convention, and under other conventions, such as the Convention on the Rights of the Child; the International Covenant on Civil and Political Rights; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These are instruments which, as we have already heard in this debate, this government says it remains committed to.

Regrettably, there has been much tabloid coverage of issues related to this legislation, which has sought to emphasise that the people afforded complementary protection are not necessarily refugees as defined under article 1 of the convention. But, contrary to what has sometimes been reported, character and security checks, including criminal checks, are conducted before any visa is granted. The Minister for Immigration and Border Protection attempted to suggest otherwise with his claims:

We were having criminals and bikies who were claiming protection ... Now, our signatory status to important international conventions to protect people's human rights are not about protecting bikies and criminals.

Of course, that is true. The minister, as has already been mentioned, was alluding to reports of a bikie from New Zealand. The minister, of course, declined to mention that this man had not actually been issued with a visa. As far as we are aware he has not yet been issued with one. The minister's omission was very strange in the context of the apparent need for this legislation.

There are already exclusion clauses that can be applied to applicants who have committed crimes. Furthermore, the grounds for exclusion from complementary protection are even broader than for individuals being assessed as refugees. The minister has an additional capacity to exclude on security grounds. Nevertheless, if the government wishes to allay any community concern—albeit concern that it has largely generated itself—then surely it can work within the existing system, rather than abolishing the category of complementary protection altogether.

While I am pleased that the minister has stated that Australia continues to be committed to meeting our non-refoulement obligations, his suggested manner of achieving this stated commitment is, to say the least, curious. It seems to me that the contrary is in fact the case. I am indebted to the many—21, I believe—legal academics who prepared a comprehensive briefing note on this bill for members. I concur with their advice that repealing the present complementary protection regime would be inconsistent with our international obligations. This is because removing a codified basis to have claims considered against the complementary protection criteria means that Australia cannot guarantee that people will be protected from removal to significant harm.

The minister, in his second reading speech, refers to the complementary protection provisions as a 'costly and inefficient way to approach the issue'. But that is not the case. Let me briefly turn to the first limb of this criticism. It simply does not stand up. The explanatory memorandum makes clear why this is not the case:

The financial impact of these amendments is low. The estimated costs associated with the implementation of the proposed amendments will be met from within the department's existing funding.

We are, of course, talking about 83 applications over 18 months. It is inefficient. Complementary protection, under the present regime, introduced greater efficiency, transparency and accountability into Australia's protection regime. The regime that preceded it was lengthy, inefficient and uncertain. Indeed, the former minister for immigration, Chris Evans, who introduced the complementary protection regime—proposed for repeal under this legislation—did so to increase efficiency, as he had received a very large number of requests each year under previous laws.

How does the minister reconcile the claims in his second reading speech to what he has provided in the explanatory memorandum? What is the real reason for abolishing the complementary protection provisions if the minister's own explanatory memorandum undermines this case? The rhetoric from the current minister indicates that his obsession is to reduce the number of visas issued under his watch. It is nothing but a numbers game. However, even by this measure, the manner in which he seeks to achieve this through the legislation, by simply erasing a category of protection visa, seems a bizarre way of doing it, quite apart from its broader failings of principle and administrative practice.

The minister's assurances that this bill accords with Australia's international legal obligations deserves further scrutiny. The briefing note I referred to previously, prepared by a number of prominent legal academics, advises that this bill is contrary to Australia's international legal obligations and that the bill before us is:

… insufficient to meet the absolute and non-derogable requirement in international human rights law that Australia will not expose people to the real risk of torture, cruel, inhuman or degrading treatment or punishment, the death penalty, or arbitrary deprivation of life.

The Senate Legal and Constitutional References Committee recommended in March 2006 that the Migration Act be amended to:

… introduce a system of "complementary protection" for future asylum seekers who do not meet the definition of refugee under the Refugee Convention but otherwise need protection for humanitarian reasons cannot be returned.

There were a large number of national and international bodies that issued recommendations consistent with this committee's findings, including the Senate Select Committee on Ministerial Discretion in Migration Matters, the Australian Human Rights Commission and the UN Committee Against Torture. Despite this, the bill before us goes back to the future, as so often has been the case with other legislation proposed by this government—back to the future absent of any meaningful justification.

It is clear that the present minister has a curious notion of his role as a minister under the Westminster system, as we have seen so often in question time in this place. He denies, it would appear, all the traditions of Westminster accountability, yet wishes to, in the words of other ministers, 'play God' in dealing with complementary protection matters. Does Australia really want Minister Morrison, or indeed any minister, assuming this role, knowing what we know about how it has operated in the past and how the present certain and efficient regime has been operating?

When former Minister Evans rejected this role for himself, he said:

In a general sense I have formed the view that I have too much power. The act is unlike any act I have seen in terms of the power given to the minister to make decisions about individual cases. I am uncomfortable with that not just because of a concern about playing God but also because of the lack of transparency and accountability for those ministerial decisions, the lack in some cases of any appeal rights against those decisions and the fact that what I thought was to be a power that was to be used in rare cases has become very much the norm.

Parliament has a role to play in applying proper scrutiny to this bill, as it should have in relation to decisions that are the subject of this bill, so I am glad the bill will be referred to the Senate Legal and Constitutional Affairs Legislation Committee, which is due to report in March next year. If it is anything like previous Senate reports on this matter it will make for compelling reading, for all members.

It is very unusual that a government so rhetorically committed to small government and reducing the power of the state is so keen to enhance the power of a minister without sufficient or real scrutiny, much less real grounds of cost or efficiency in support of these changes. More broadly, as we stand here in the shadow of yesterday's Human Rights Day, let us mean what we say with respect to our international obligations. Let us deal thoughtfully and properly about our complementary protection regime and let us—all of us here—think for a moment about the circumstances of those people seeking asylum in this country.

Mr Hawke: Mr Deputy Speaker, on a point of order: during the last contribution to this debate, the member for Fraser accused me of misleading the House. That is unparliamentary and I would ask him to withdraw that, except by way of a substantive motion.

The DEPUTY SPEAKER ( Mr Mitchell ): I request, to assist the House, that the member for Fraser withdraw.

Dr Leigh: I withdraw.

Mr Hawke: Mr Deputy Speaker, on a point of order: I seek leave to table page 3657 of Hansard, from 11 May, of the member for Fraser's contribution to the debate, where he says:

For those who've come across the seas 'We've boundless plains to share'. Australia is a big country with a big heart.

Leave not granted.